Bays v. Warden Ohio State Penitentiary
Filing
213
DECISION AND ORDER ON MOTION TO AMEND; REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS - The Magistrate Judges Decision and Order/Report and Recommendations of June 15, 2015 (ECF No. 201) is WITHDRAWN. The Warden's Motion to Dismiss is technical ly moot because Bays proposes to replace the Petition with an Amended Petition and it is respectfully recommended that the Motion to Dismiss be DENIED on that basis. bjections to R&R due by 10/13/2015. The Motion for Leave to File an Amended and Supplemental Petition is DENIED without prejudice to its renewal not later than October 9, 2015. Signed by Magistrate Judge Michael R. Merz on 9/23/2015. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICHARD BAYS,
Petitioner,
:
- vs -
Case No. 3:08-cv-076
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Ohio State Penitentiary,
:
Respondent.
DECISION AND ORDER ON MOTION TO AMEND; REPORT AND
RECOMMENDATIONS ON MOTION TO DISMISS
This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
(ECF No. 205) and Bays’ Motion for Leave to file a Second Amended and Supplemental Petition
(ECF No. 208). The Motions have been thoroughly briefed (ECF Nos. 209, 210, 211, and 212).
Because a motion to dismiss is dispositive within the meaning of 28 U.S.C. § 636(b), it
requires a recommendation from an assigned Magistrate Judge, rather than a decision. However,
a motion to amend is a non-dispositive matter on which a Magistrate Judge has decisional
authority in the first instance. However, a motion to amend under Fed. R. Civ. P. 15 is nondispositive and therefore within the initial decisional authority of a Magistrate Judge.
Pending Decision and Report
Presently pending before the Court is the Magistrate Judge’s Decision and Order/Report
and Recommendations of June 15, 2015 (ECF No. 201) denying a prior Motion to Amend (ECF
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No. 198) and recommending
that the District Court dismiss Grounds Twelve and Thirteen
without prejudice to a new petition raising any lethal injection
claims Bays may have with respect to the January 9, 2015, Ohio
lethal injection protocol. It is further recommended that the Court
enter final judgment in accordance with its prior decision of
August 6, 2012 (Doc. No. 134).
Id. at PageID 8014. That recommendation is WITHDRAWN. Given that the prior Motion to
Amend is moot in light of Petitioner’s instant and subsequent Motion to Amend and that the
recommendations have been withdrawn, the Notation Order granting a stay of the deadline to
object (Notation Order granting ECF No. 204) is MOOT as there is no longer any pending
recommendation.
Motions to Dismiss and Amend
The Warden bases her Motion to Dismiss on the recent decision of the United States
Supreme Court in Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726 (2015), where the Justice
Alito wrote for the majority:
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze decision in Hill v.
McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44
(2006), but they misread that decision. The portion of the opinion
in Hill on which they rely concerned a question of civil procedure,
not a substantive Eighth Amendment question. In Hill, the issue
was whether a challenge to a method of execution must be brought
by means of an application for a writ of habeas corpus or a civil
action under §1983. Id., at 576, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
We held that a method-of-execution claim must be brought under
§1983 because such a claim does not attack the validity of the
prisoner’s conviction or death sentence. Id., at 579-580, 126 S. Ct.
2096, 165 L. Ed. 2d 44.
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135 S. Ct. at 2738.
The Warden argues that this passage from Glossip “contradicts” the reading of Hill which
the Sixth Circuit gave that case in Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), when it held
that a challenge to a lethal injection protocol can be brought in a habeas corpus case under 28
U.S.C. § 2254. As the Warden notes, this Court has read Adams expansively to allow death row
inmates to pursue challenges to Ohio’s lethal injection protocols simultaneously in habeas corpus
and in a civil rights action under 42 U.S.C. § 1983. Gapen v. Bobby, 2012 U.S. Dist. LEXIS
121036, * 3-8 (S.D. Ohio 2012); Waddy v. Coyle, 2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio
2012); Sheppard v. Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012); Bethel v.
Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio 2012); Sheppard v. Warden, 2013 U.S.
Dist. LEXIS 5560, *21-22 (S.D. Ohio 2013); Turner v. Bobby, 2013 U.S. Dist. LEXIS 39470,
*3-4 (S.D. Ohio 2014).
This Court has persisted in this expansive reading of Adams despite refusals by the Sixth
Circuit to remand habeas cases for discovery on a lethal injection claim where the petitioner has
a pending § 1983 case in which he can receive the discovery necessary to support that claim.
Scott v. Houk, 760 F.3d 497 (6th Cir. 2014); accord, Frazier v. Jenkins, 770 F.3d 485 (6th Cir.
2014). The Court has reasoned that neither Scott nor Frazier purported to overrule Adams,
which remained (and indeed remains) a published and unreversed decision of the circuit court.
The Warden’s Motion to Dismiss is directed to Bays’ Amended Petition (ECF No. 198).
The Motion is technically moot because Bays proposes to replace the Amended Petition with a
Second Amended Petition and it is respectfully recommended that the Motion to Dismiss be
DENIED on that basis.
The Warden repeats in opposition to the Motion to Amend the arguments based on
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Glossip, supra, that she makes in Motion to Dismiss (Opposition, ECF No. 211).
For the
reasons already given in other recently-decided motions calling for application of Glossip, the
Magistrate Judge concludes that Bays’ Proposed Second Amended and Supplemental Petition
does not adequately plead claims cognizable in habeas corpus in light of the fact that Bays is also
a plaintiff in In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016. See Landrum v.
Robinson, 2015 U.S. Dist. LEXIS 116914 (S.D. Ohio Sept. 2, 2015); Turner v. Hudson, 2015
U.S. Dist. LEXIS 119882 (S.D. Ohio Sept. 9, 2015); Franklin v. Robinson, 2015 U.S. Dist.
LEXIS 120595 (S.D. Ohio Sept. 10, 2015); and O’Neal v. Jenkins, 2015 U.S. Dist. LEXIS
121376 (S.D. Ohio Sept. 11, 2015). In summary, the Magistrate Judge has concluded that the
expansive reading of Adams he previously relied on is no longer tenable in light of Glossip, but
that death row petitioners may still be able to properly plead habeas claims related to lethal
injection protocols.
Based on the reasoning in those decisions, the Motion for Leave to File a Second
Amended and Supplemental Petition is DENIED without prejudice to its renewal not later than
October 9, 2015. In any renewed motion, Bays must show clearly how any proposed new claims
differ from claims made or proposed to be made in the In re Ohio Execution Protocol Litig. case
and relate them to Ohio’s lethal injection protocol as amended June 29, 2015. For reasons
already given in the prior decisions, the Court hopefully requests Petitioner’s counsel to avoid
using the label “LI-habeas claims.”
September 23, 2015.
s/ Michael R. Merz
United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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